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Supreme Court commences hearing of petitions seeking invalidation of Kenyatta’s win

Prior to the commencement of the hearing Chief Justice David Maraga will lead his bench in making pending rulings on a number of applications considered by the court on Tuesday/MOSES MUOKI

NAIROBI, Kenya, Nov 15 – The Supreme Court will convene at 10 am on Wednesday as the hearing of two petitions challenging the validity of the October 26 presidential election gets underway.

Prior to the commencement of the hearing Chief Justice David Maraga will lead his bench in making pending rulings on a number of applications considered by the court on Tuesday.

The applications whose rulings will be rendered include that seeking scrutiny of results declarations forms, access to an independent audit of the voters register, access to the election servers and logs from the Kenya Integrated Election Management System (KIEMS) kits and Independent Electoral and Boundaries Commission’s minutes for the period between September 1 and October 31.

In other rulings on Tuesday night, the court expunged the National Super Alliance as a respondent in the Njonjo Mue and Khelef Khalifa petition following an application by President Uhuru Kenyatta’s lead counsel Fred Ngatia.

The court also removed from the cause list for purposes of presidential petitions, a petition by the Institute for Democratic Governance (IDEG) and ordered that it will be heard separately after the conclusion of the two petitions challenging the October vote.

In its ruling, the court found that the IDEG petition did not squarely fall under Article 140 of the Constitution which requires a petition challenging the election of a President-elect to be heard and determined within fourteen days of filing.

The petition seeks to have a section NASA leaders among them presidential candidate Raila Odinga and his running mate Kalonzo Musyoka found guilty of election offenses for allegedly intimidating voters and stirring violence ahead of the presidential election hence disrupting the exercise in some areas.

According to lawyer Kioko Kilukumi, the petition is anchored on Article 163 (3) (a) of the Constitution which allows the court to determine disputes relating to the election of a President arising under Article 140.

“Article 163 (3) (a) is so broad such that it allows this court an exclusive jurisdiction to handle anything (dispute) relating to that election,” lawyer Kilukumi told the court on Tuesday.

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“The Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140,” the said Article reads in part.

The apex court also admitted the Attorney General into the Mue-Khalifa petition as an interested party.

The court will prosecute the Mue-Khalifa petition jointly with that filed by former Kilome MP Harun Mwau after it made a decision to consolidate the two.

The Mwau case is premised on arguments that the IEBC did not conduct fresh nominations for purposes of the October presidential election, having been ordered by the Supreme Court to conduct a fresh election after the court nullified the August 8 presidential contest.

Mwau argues that none of the candidates on the ballot during the election he is challenging were validly nominated hence none could have been lawfully declared the winner.

The court has until Monday to make a ruling, being fourteen days following the filing of the petitions.

If President Kenyatta’s victory is upheld, he will be sworn in the first Tuesday following seven days of the court’s decision – November 28 – according to Article 141 (2) (b).

If the court invalidates the election, the country will go back to the ballot in sixty days to elect its leader in accordance with Article 140 (3).

The Supreme Court bench comprises of CJ Maraga, Deputy CJ Philomena Mwilu, Justices Jackton Ojwang’, Smokin Wanjala, Lady Justice Njoki Ndung’u and Isaac Lenaola.

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